Decolonising Australia’s Native Title System
| Author | Kayla Gebeck |
Decolonising Australia’s Native Title System
Kayla Gebeck*
I. INTRODUCTION
There was a strange thing, a buffalo with horns of steel. One day a
man came upon it in the plain, just there where once upon a time
four trees stood close together. The man and the buffalo began to
fight. The man’s hunting horse was killed right away, and the man
climbed one of the trees. The great bull lowered its head and began
to strike the tree with its black metal horns, and soon the tree fell.
But the man was quick, and he leaped to the safety of the second
tree. Again the bull struck with its unnatural horns, and the tree
soon splintered and fell. The man leaped to the third tree and all the
while he shot arrows at the beast; but the arrows glanced away like
sparks from its dark hide. At last there remained only one tree and
the man had only one arrow. He believed then that he would surely
die. But something spoke to him and said: ‘Each time the buffalo
prepares to charge, it spreads its cloven hooves and strikes the
ground. Only there in the cleft of the hoof is it vulnerable; it is there
you must aim.’ The buffalo went away and turned, spreading its
hoof, and the man drew the arrow to his bow. His aim was true and
the arrow stuck deep into the soft flesh of the hoof. The great bull
shuddered and fell, and its steel horns flashed once in the sun.1
The purpose of this Article is to survey the development of collective rights,2
* Ka yla Gebeck received an MA in Hum an Rights Law at SOAS, U niversity of London prior to working
as a Policy Analyst at the Native Amer ican Finance Officers Association in Washington D.C., United
States. Special ackno wledgemen ts for this Article inc lude Cinnam on Spear and Dr Sarah Ke enan.
1 Navarre Scott Momaday, The Way to Rainy Mountain (University of New Mexico 1976) 54.
2 Includes but is not limited to: the right to group and collective rights; right to self-determination;
right to economic and social development; right to a healthy environment; right to natural
resources; and right to partic ipate in one’s cultural herit age. Whi le third gen eration r ights bui ld
on civil, political, economic, social and cultural rights of the first and second generations of
human rights, third generation rights highlight th e collective nature of indigenous lega l systems
to determine their own governments, education, health, n atural resources and environment. For
further explanation of rights mentioned see Ilias Bantekas and Lutz Oette, International Human
Rights Law and Practice (CUP 2013) 409-51.
174 Decolonising Australia’s Native Title System
www.soaslawjournal.org
more specifically Native Title rights and the right of free, prior and informed
consent (FPIC) in Australia. Given Australia’s recent colonial history, it is of
particular interest to examine whether the effects of domestic legislative
mechanisms – Mabo and others v Queensland (No 2)3 [hereafter referred to as
Mabo], the Native Title Act 1993 (Cwlth) and the National Native Title Tribunal
(NNTT) – align with collective rights recognised in the Unit ed Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP) 4 and the Alta
Outcome Document (2013).5 Holders of collective rights shall be referred to as
‘indigenous’ when discussing rights recognised under the UNDRIP and
‘indigenous Australian’ when discussing land rights specific to Australia.
On the internatio nal level, the development of collective rights has played an
essential role in the conception of legal resources that support indigenous
communities’ rights to land and traditional ways of life. N. Scott Momaday’s oral
tradition mentioned above advocates for indigenous people to identify and
target weak legislation and gaps in land and development policy along with
actively creating resources that assist in and further legal claims to protect these
rights. Thus far, this approach has been extremely effective in developing
international dialogue about the need and reason for protecting indigenous
social and economic rights. Andrea Muehlebach states, ‘Experts in international
law and politics have noted that international indigenous political activism has
placed itself squarely within the cracks, crevasses, and absences in these fields’.6
Muehlebach’s observation is a Western understanding of Momaday’s tradition.
While Deborah Bird Rose argues that indigenous people become participants in
their own colonisation by utilising institutions, resources and legislation
created by the colonial power, the position of this Article is that in the case of
Australia, it is beneficial for Native Title holders to actively seek out avenues
within domestic and international legal frameworks to protect their Native Title
rights. Engaging in said legal frameworks provides indigenous Australians the
3 Mabo and others v Queensland (No 2) HCA 23, (1992) 175 CLR 1.
4 UNGA, ‘United Nations Declaration on the Rights of Indigenous Peoples’ (UN Doc A/RES/61/295,
2 October 2007).
5 UNGA, ‘Letter dated 10 September 2013 from the Permanent Representatives of the Plurinat ional
State of Bolivia, Denmark, Finland, Guatemala, Mexico, New Zealand, Nicaragua, Norway and
Peru to the United Nations addressed to the Secretary-General’ (UN Doc A/67/994, 13
September 2013).
6 Andrea Muehlebac h, ‘”Making Place” at the Un ited Nations: Indigen ous Cultural Politics at the
U.N. Working Group on Indigenous Populations’ (2011) 16 (3) Cultural A nthropolog y 415, 418;
Catherine Ior ns, ‘Indigenous Peoples and Se lf-Determination: Challenging State Sovereignty’
(1992) 24(165) Case Western Reserve Journal of International Law 199; Chris Tennant, ‘Indigenous
Peoples, Intern ational Inst itutions, and the In ternational L egal Literatur e from 1945-1 993’ (1994)
16 Human Rights Quarterly 1.
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